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I'm at a conference on litigation funding and realized it might be useful, especially for journalists, to think through what we mean when we talk about litigation funding or litigation finance.

Journalists and others tend to describe all forms of investment that support litigation under one umbrella: “litigation funding.” But in fact the litigation funding market is highly specialized. Types of litigation funding should be considered separately because they are very different financial products with different costs and benefits. This is my stab at setting out the parameters of this space:

Commercial litigation funding. This type of litigation funding is offered by investors and can be used by either plaintiffs or defendants. The funding agreements involve sophisticated parties on both sides, either firms or clients. It well recognized in international arbitration and is increasingly used in other types of commercial cases. Funding may be for an individual litigation or for a portfolio of suits.

Appeals funding. This type of funding is given to lawyers against fees (often contingency) and to clients against expected recoveries.

Patent litigation funding. These involve three types of entities. First, some entities purchase patents and prosecute patent infringers but have no relationship to the inventors. Second, a company may sue the infringers and give a small percentage of the recovery to the inventors. Third, universities or companies may monetize their patent portfolios using a funder.

Law firm financing. Law firms may obtain financing usually structured as a loan with their receivables as collateral.

Consumer litigation funding. These funders provide small retail level non-recourse loans to individual tort or contract plaintiffs, typically under $5,000. This type of funding is the most like “payday” loans.

Mass tort monetizations. These types of funders may advance money to lawyers against future earned fees and to clients against expected recoveries in aggregate tort litigation such as multidistrict litigation after a settlement matrix is in place. Depending on how it is used, this may be more like law firm financing for a portfolio of cases of a particular type (cases filed against a particular defendant for example) or consumer litigation funding, directly offered to the client. These funders specialize in mass torts, but loans to lawyers should be differentiated from advances to clients because lawyers are sophisticated market actors who can protect themselves, whereas tort clients tend to be more vulnerable.

(This was edited to correct the amount that individuals usually obtain from consumer funding).

The University of Connecticut School of Law and Insurance Law Center invite you to a conference on

“Pricing Litigation Risk in the 21st Century”

Friday, April 27, 2018 from 9 to 2

Please join us for a first of its kind conference on measuring and managing litigation risk. Bringing together thought leaders in law, finance, insurance, and economics, from practice and academia, this conference will explore new approaches to evaluating litigation risk, including the latest tools available such as digital and data analytics, artificial intelligence, and game theory. We will examine the methods for evaluating risk currently in use, explore new approaches, and consider what limitations constrain our ability to evaluate and quantify litigation risk.

Panel Topics Include:

Current Methods: Perspectives from Law Firms, Finance, and Insurance

Innovations: Probability Theory and Data Analytics

New Directions, Possibilities and Critique

Speakers:

David Abrams, Professor, University of Pennsylvania Law School

Natalie Chairamonte, Vice President, Sovereign Insurance

Andrew Cohen, Vice President, Burford Capital

Eric Falkenberry, Partner, DLA Piper

James Heavner, Senior Vice President, Director of Litigation, The Hartford

Registration is required by April 23. Continental breakfast and lunch will be served.

Registration is free of charge, parking $3/day. If you require reasonable accommodations for a disability, please contact the Law School at 860-570-5130 or law.access@uconn.edu at least two weeks in advance. Eligible for CT CLE credit.

The Fourth Annual Civil Procedure Workshop will be held on November 9-10, 2018 at Stanford Law School. Here's the blurb from its tireless organizers:

We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

It's chock full of interesting ideas and features a keynote from Professor Arthur Miller (NYU). Here's the table of contents (if the PDF links below don't work, the full volume is available at the link above):

Readers may be interested in the following announcement from the organizers of the civil procedure workshop, contact information below.

We are excited to announce the second annual Civil Procedure Workshop, to be co- hosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.

The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Vanderbilt Law School has issued its call for papers for the 2016 New Voices in Civil Justice Scholarship Workshop. Alexi, Sergio, and I have all attended these in the past and can attest that it's a great way to get feedback from senior scholars in the field. More information is available here.

NYU's new Center on Civil Justice is hosting a conference on November 7 titled "The Future of Class Action Litigation: A View from the Consumer Class." Here's a bit more information for those in the area who might be interested (I understand there will be up to 6 CLE hours available):

Co-hosted with the NYU Journal of Law & Business

Keynote Address by Chief Judge Alex Kozinski, US Court of Appeals for the Ninth Circuit

Friday, November 7, 2014

REGISTER HERE. Up to 6 hours of New York State CLE credit will be available to both experienced and newly admitted attorneys under the Areas of Professional Practice Category.

NYU School of LawVanderbilt Hall, Greenberg Lounge40 Washington Square South

Have consumer class actions run their course? Once, they were praised for increasing access to justice by compensating "small claims held by small people." They were also seen as a form of regulation, because they allowed private enforcement of the law by overcoming the economics of small-stakes individual litigation. This view was so widely accepted that the Supreme Court described these "negative value" suits as "the very core of the class action mechanism."

Now, consumer class actions face serious criticism for failing to provide compensation for class members or to achieve effective market regulation. Courts and commentators have questioned whether class members or society benefit from these cases. Perhaps as a result, it is harder to certify a consumer class action today than at any time since the adoption of modern Rule 23 in 1966.

This conference will explore whether consumer class actions deserve the criticism—or the praise—that they have received. Participants will discuss a broad range of issues about the recent development of the law of consumer class actions. The conference will also consider what the criticism of consumer class actions means for the future of class actions more generally. If "the very core" of class actions goes away, what will be left?

I received a notice about the First Annual Civil Procedure Workshop from Dave Marcus (Arizona) this morning and wanted to circulate it as broadly as possible. Here's the information from the organizers:

We are pleased to announce the first annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.

The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.

Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead the commentary. Confirmed participants for 2015 include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, Judith Resnik, Suja Thomas, and Tobias Barrington Wolff.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by December 15, 2014. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for ten years or fewer. Workshop organizers will select papers to be presented by January 31, 2015. Please send all submissions or related questions to Brooke Coleman.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

I've been a bit slow in posting this, but Louisiana Law Review hosted an excellent symposium last spring titled The Rest of the Story: Resolving the Cases Remanded by the MDL. As part of that symposium, I wrote a piece titled Remanding Multidistrict Litigation. Remands are something that have received scant attention in the scholarly literature, but are a constant hope for many plaintiffs' lawyers involved in multidistrict litigation (well, at least those who aren't on the steering committees).

I just got around to posting the piece on SSRN today. Here's the abstract:

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through jury trials in affected communities. Yet, if transferee judges remanded cases after overseeing discovery into common issues, they could alleviate those concerns while avoiding inconsistent rulings on common questions and streamlining discovery.

Despite the potential upside, remand rarely occurs because it disfavors those with litigation control—transferee judges, lead plaintiffs’ attorneys, and defendants. Transferee judges deem settlement a hallmark of their success. Lead plaintiffs’ lawyers try to increase their fees by inserting fee provisions into settlements. Likewise, plaintiffs’ attorneys can bypass doctrinal uncertainties over weak claims by packaging plaintiffs together in a global settlement. And aggregate settlements allow defendants to resolve as many claims as possible in one stroke, take their hit, and return to business, which their shareholders view as a net positive. The remand process itself defers to these vested interests. Although the Panel could remand cases at a party’s request, in practice it appears never to have done so. Rather, it waits for the transferee judge to admit defeat and suggest remand—thereby conceding failure.

For transferee judges to begin remanding cases, the “pro-settlement” norm and “remand-as-a-failure” stigma must change. Accordingly, transferee judges should routinely entertain a suggestion for remand by a party or initiate them sua sponte as soon as discovery on common issues concludes and only case-specific issues remain. Likewise, the Panel should seriously consider parties’ remand requests even when the transferee judge does not support them. This reopens a direct line for parties to request remand when common discovery ends, but the transferee judge prefers to hold cases hostage in hopes of coercing settlement.

If you happen to be in Buffalo this Monday, you might check out SUNY's Civil Justice Symposium on Recent Developments in Tort Law and Practice. Ken Feinberg is the keynote speaker. There's also a panel at 10:20 where I, along with our co-blogger Sergio Campos, Emery Lee (FJC), and Matt Steilen will discuss disaggregating (I think the official title is Aggregation and Disaggregation in Mass Torts). Here's the rest of the agenda:

The Lippes Lecture is brought to you by SUNY Buffalo Law and UB's School of Managment

Mr. Feinberg is an attorney who has overseen the payouts of billions of dollars to the victims of the September 11 Victim Compensation Fund, the BP oil spill, and the Boston Marathon bomb victims, among other highly visible settlements.

Louisiana Law Review is hosting a symposium on Multidistrict Litigation this Friday, March 7, 2014, that focuses on remand and may be of interest to our readers. The title of the symposium is "The Rest of the Story: Resolving Cases Remanded by MDL Here's the link for registration and additional information.

The panel will discuss various kinds of discovery (e.g., E-Discovery, expert discovery, and specific discovery), and the strategic and case management challenges each method presents in the context of MDLs, including both aggregated and disaggregated discovery issues.

Moderator: Mark Lanier, The Lanier Law Firm

Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas

Federal Judicial Center researchers will present findings from their research on multidistrict litigation. The analysis will focus on two sets of cases: (1) cases that are considered for transfer but not transferred, and (2) cases that are transferred and that are subsequently remanded back to the transferor court. Understanding these cases, and the cases that are resolved in the transferee court, may provide some insight into the effects of aggregation on various kinds of cases

Moderator: Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas

Emery G. Lee, III, Federal Judicial Center

Margaret Williams, Federal Judicial Center

Catherine Borden, Federal Judicial Center

1:20-2:20: Panel 5: When Remand is Appropriate

The panel will discuss at what stages plaintiffs, defendants, and judges perceive optimal windows to disaggregate various kinds of issues, and the factors that influence the decision and timing.

Moderator: Dean Edward F. Sherman, Tulane University Law School

Judge Fallon; U.S. District Court for the Eastern District of Louisiana

Professor Elizabeth Burch, University of Georgia School of Law

David Jones, Beck Redden, LLP

2:30-3:30: Panel 6: How Remand Should be Effectuated

The panel will discuss how judges and attorneys work together to effectuate remand of MDL cases, including methods for ensuring smooth transitioning of work product, case management, and expertise to state and federal judges upon remand.

Moderator: Francis McGovern; Professor of Law, Duke Law School

Judge Fallon; U.S. District Court for the Eastern District of Louisiana

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School.

The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared “presentations.” Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

Submission requirements:

1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

2. Author qualifications. To be eligible to submit a paper, scholars must currently hold either a faculty position or a fellowship.

3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. To maintain the anonymity of the process, please remove any self-identifying information from the submission.

4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15. Final drafts are due no later than April 15.

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the chair of the selection committee, Brian Fitzpatrick, at brian.fitzpatrick@vanderbilt.edu.

This spring's 20th Annual Clifford Symposium at DePaul University College of Law is featuring Judge Jack Weinstein's Impact on Civil Justice in America. It looks like they have lined up an allstar cast, with Justice Stephen Breyer giving the special address. Speakers include:

Susan Bandes, DePaul University College of Law

Anita Bernstein, Brooklyn Law School

Shari Seidman Diamond, Northwestern University

Howard M. Erichson, Fordham University School of Law

David L. Faigman, University of California Hastings College of the Law

For those who were unable to attend the "Lessons from Chevron" symposium at Stanford Law School in February, the conference website now has links to videotapes of the panels. Some of the panels focused directly on the Chevron-Ecuador environmental litigation itself, while others used that litigation as a springboard to consider such issues as litigation financing, transnational legal ethics, forum non conveniens, judgment enforcement, international discovery, and international arbitration. The participants included a mix of players in the litigation, journalists who have followed the litigation, and scholars interested in various aspects of transnational litigation: Deborah Hensler, Graham Erion, Theodore Boutros, Judith Kimerling, Burt Neuborne, Martin Redish, Maya Steinitz, Nora Freeman Engstrom, Morris Ratner, Catherine Rogers, Patrick Keefe, Jenny Martinez, Howard Erichson, Manuel Gomez, Christopher Whytock, Janet Martinez, Michael Goldhaber, Richard Marcus, and S.I. Strong.

This essay, written for the 2013 Stanford Journal of Complex Litigation symposium on lessons from the Chevron-Ecuador environmental litigation, urges that we not take the wrong lesson concerning the doctrine of forum non conveniens. The paper highlights the irony of the forum battles in the litigation. The plaintiffs sued in the United States, the defendants won dismissal on grounds of forum non conveniens (arguing that the dispute should be adjudicated by the courts of Ecuador), the plaintiffs obtained a massive judgment in Ecuador, and the defendants challenged the judgment on grounds of fraud and corruption in the Ecuadorian proceedings. Despite the temptation to see the Chevron-Ecuador litigation as a cautionary tale about forum non conveniens, this essay argues that the “adequate alternative forum” standard for forum non conveniens should remain exceedingly low. Ex ante, deference to foreign legal systems should prevail, even as we permit ex post challenges to recognition of judgments on grounds of fraud and corruption.﻿

The essay was prepared for the Stanford Lessons from Chevron symposium, which took place in February. On this blog, the long-running environmental dispute has come up a number of times, including a recent reference to Michael Goldhaber's work and earlier reports here, here and here.

For those who were unable to attend the excellent conference on class actions that was held last month at George Washington Law School, video recordings of the panels can now be found on the conference website.

At Corporate Counsel, there's an interesting piece by journalist Michael Goldhaber entitled Kindergarten Lessons from Chevron in Ecuador. Goldhaber, who has been following this massive and messy litigation for years, offers what he sees as some of the true and false lessons from the ongoing litigation concerning Texaco-Chevron's involvement in oil drilling in Ecuador.

In a nutshell, the litigation involves claims that a Texaco subsidiary caused environmental damage to the Oriente region of Ecuador. Plaintiffs originally sued in the Southern District of New York, but their suit was dismissed on grounds of forum non conveniens. Plaintiffs then filed a lawsuit in Ecuador and won an $18 billion judgment. Chevron contends that the Ecuadorian judgment was obtained by fraud and corruption, and has resisted enforcement of the judgment. Chevron sued plaintiffs' attorney Stephen Donziger and others, asserting RICO and fraud claims. An international arbitration tribunal weighed in pursuant to the Ecuador-US bilateral investment treaty. Plaintiffs are seeking to enforce the judgment in Canada, Argentina, Brazil and elsewhere. This mess of a litigation has been going on for nearly 20 years.

Goldhaber, in prior work, has articulated a strong view that the Ecuadorian judgment was the product of fraud and corruption. In the new article, Goldhaber takes as his starting point the Stanford Journal of Complex Litigation symposium that took place in February. He goes through the basic lessons offered by the participants -- plaintiffs' lawyer Graham Erion, defense lawyer Theodore Boutros, and a host of scholars including myself.

The strongest lesson (and here I am in complete agreement with Goldhaber): "Be careful what you wish for." The irony of this litigation is overwhelming. Texaco fought to have the case dismissed on grounds of forum non conveniens, arguing that Ecuador was a more appropriate forum. The plaintiffs argued that the Ecuadorian courts could not handle the case and that it should remain in the U.S. Ever since the massive judgment, however, the positions have been flipped -- with the plaintiffs insisting that the judgment deserves respect and the defendant contending that the Ecuadorian courts were corrupt. Goldhaber has referred to this as "forum shopper's remorse."

But I do not agree with Goldhaber's next step. Noting that "the abuse of transnational litigation would never have happened had the U.S. held on to the case," he suggests that the doctrine of forum non conveniens be altered to take into account the stakes and political significance of a case:

The great blunder in this dispute was to ship it to Ecuador in the name of forum non conveniens. The U.S. courts could have saved everyone a lot of grief had they recognized that a case is more prone to abuse when the issues are (a) high-stakes or (b) politicized. I learned from Russia's Yukos affair that, even if a weak judicial system has made significant progress, it does not deserve trust in a hot-button case of great magnitude. It was reckless to expect Ecuador (even if it had just adopted a new set of corruption reforms) to handle a huge case pitting gringo oil companies against indigenous rights. My modest suggestion is to incorporate these factors into the FNC analysis.

The adequate alternative forum prong of the forum non conveniens analysis is a low threshold, and deliberately so. A lawsuit alleging environmental harm to Ecuadorian land and medical harm to Ecuadorian citizens, and involving control over Ecuadorian natural resources, belongs in Ecuador. That is the very point of forum non conveniens. A U.S. court should be loath to say that it will hear the case in the U.S. because it thinks the Ecuadorian courts just cannot handle it. A judgment obtained by fraud should not be enforceable elsewhere, but this is better addressed ex post, which is exactly what the current litigation -- albeit in a rather ugly fashion -- is doing. But to have said, ex ante, that the case should be heard in the United States despite all of the public and private interest factors that pointed to Ecuador, would have been a mistake.